Fed. Nat'l Mortg. Ass'n v. Hollien

• Decision Date: 27 November 2019
• Docket Number: 2019-34561,INDEX 30057-2013
• Parties: FEDERAL NATIONAL MORTGAGE ASSOCIATION, Plaintiff, v. JENNIFER HOLLIEN; STEVEN KOSIN and JASON HOLLIEN, Defendants. Motion Sequence No. 005: MotD
• Court: New York Supreme Court

FEDERAL NATIONAL MORTGAGE ASSOCIATION, Plaintiff,
v.
JENNIFER HOLLIEN; STEVEN KOSIN and JASON HOLLIEN, Defendants.

INDEX NO. 30057-2013 Motion Sequence No. 005: MotD

No. 2019-34561

Supreme Court, Suffolk County

November 27, 2019

Unpublished Opinion

Motion Date: 11-8-2018

Adjourned Date: 12-13-2018

SHAPIRO, DICARO & BARAK, LLC Attorneys for Plaintiff

ABRAMS FENSTERMAN Attorneys for Defendants JENNIFER HOLLIEN and STEVEN KOSIN

JASON HOLLIEN, Defendant Pro Se

PRESENT: HON. C. RANDALL HINRICHS Justice

C. RANDALL HINRICHS, J.S.C.

1

Upon consideration of the notice of motion by the plaintiff Federal National Mortgage Association ["the plaintiff"], for an order confining and ratifying the report of the referee and for a judgment of foreclosure and sale, the supporting affirmation, affidavit, and exhibits; the affirmation, affidavits, and exhibits in opposition to the motion on behalf of defendants Jennifer Hollien and Steven Kosin [ collectively "the defendants"], and the plaintiff's reply affirmation and supporting exhibits; it is

ORDERED that the plaintiff's motion for a judgment of foreclosure and sale is held in abeyance in accordance herewith; and it is further

ORDERED that the parties shall appear for a conference to schedule a hearing on the issue of the amount due the plaintiff on January 15, 2020 at 9:30 a.m. at IAS Part 49, Arthur M. Cromarty Court Complex, Fourth Floor, Courtroom 16, 210 Center Drive, Riverhead, New York; and it is further

ORDERED that at least twenty days prior to the hearing, the parties shall exchange any documents including but not limited to business records, loan/payment histories, invoices, and/or receipts that the party intends to introduce at the hearing; and it is further

ORDERED that defense counsel shall serve a copy of this order with written notice of its entry upon plaintiffs counsel and any party entitled to notice within twenty days of entry by first class mail.

By order dated March 15, 2017, the plaintiff's motion for summary judgment, an order of reference and related relief was granted to the extent of striking the affirmative defenses in the defendants' answer alleging a lack of standing and the plaintiff's motion was otherwise denied, without prejudice and with leave to renew. There, the Court concluded that the submission of the affidavit of merit failed to demonstrate the admissibility of the records relied on to prove the defendants' default under the terms of the note and mortgage and the plaintiff's strict compliance with statutory and contractual notice requirements. The same order granted the defendants' cross motion to the extent of allowing discovery on the limited issue of the plaintiff's compliance with RPAPL 1304 and 1306 and otherwise denied the defendants' cross motion for summary judgment dismissing the complaint.

By order dated December 5, 2017 ["the December' 17 order"], the Court granted the renewal of the plaintiffs motion for an order granting summary judgment, striking the defendants' answer and dismissing the remaining affirmative defenses and counterclaim, fixing the default of the non-answering defendant, appointing a referee to compute and examine and report whether the subject premises should be sold in one parcel or multiple parcels, and amending the caption. Plaintiffs renewal motion was based on, among others, the affidavit of Nathan Abeln, Document Management Specialist of Seterus, Inc. dated May 25, 2017 ["the Abeln affidavit"], The Abeln affidavit attached a copy of defendants' payment history with Seterus dating back to June of 2010, prior to the defendants* default The same order concluded that a second affidavit from Abeln dated June 28, 2017, detailing the standard business practices and procedures for mailing statutory notices in addition to other documentary evidence of mailing raised the presumption that the 90-day notice was received. On renewal of summary judgment, the plaintiff also proffered an affidavit from Aneetra Harris, foreclosure specialist of Seterus, Inc. dated January 16, 2018 ["the Harris affidavit''], According to the Harris affidavit, the loan was due for the January 1, 2013 installment and all subsequent installments; the amount due as of January 15, 2018 was $290, 440.54. The December '2017 order denied the defendants; cross motion to renew their prior motion seeking dismissal as defendants foiled to bring forth any new facts or change in the law that would change the prior determination, In making his report, the referee relied on the Harris affidavit to establish the amount due as of January 15, 2018, Notably, on the motion to confirm and ratify the referee's report, no business records were annexed to the Harris affidavit. Although the parties make reference to "Objections" that were apparently filed by the defendants to the referee's report, a copy of the Objections was not included in the motion papers.

In opposing the motion to confirm and ratify the referee's report, the defendants make a number of arguments. First, the defendants argue that since the referee who issued his report dated September 22, 2018, has been discharged, ^[1] the referee's sworn report is invalid. Second, the defendants argue that the...